Gun conviction reversed for hidden hand

A defendant’s firearm conviction is reversed because testimony of a Quizno’s employee showed only that he had “something” under his shirt.

Defendant Donte Devan Mitchell walked into the restaurant and asked for a job application. He left when he was told the store was out of application forms. A short time later, he walked back into the store and headed to the restroom. He emerged with “something” under his shirt and told an employee to “open the drawer” of the cash register. Mitchell grabbed the cash and walked away. He was caught within 10 minutes, but no gun was recovered.

In Chesapeake Circuit Court, the store clerk admitted she assumed Mitchell had a weapon, based on the “way he held” his hand underneath his shirt.

“Whatever it was,” she said, “a hand, a pencil, it was aimed toward me,” she said.

Not good enough, said the Virginia Court of Appeals, contrasting Mitchell’s case to Powell v. Commonwealth, a 2004 Supreme Court case in which the defendant told store employees he had a pistol in his pocket.

In its Oct. 16 unpublished opinion, the appellate panel reversed the conviction for use of a firearm in the commission of a robbery.